5.  The applicant was born in 1939 and lives in Moscow.
6.  In 1996-1999 the applicant and his associates, acting on behalf of an organisation named “The National Land Use Association” (региональная общественная Ассоциация “Народное землепользование”) they had set up earlier, bought plots of land around Moscow destined exclusively for agricultural use and then, having reconfigured these plots into smaller pieces, transferred them to the organisation’s members, giving them reason to believe that the land could be used for building purposes.
7.  On 10 January 2000 criminal proceedings were instituted against the applicant on suspicion of fraud (Article 159 of the Criminal Code) and forgery (Article 327 of the Criminal Code).
8.  On 7 December 2000 the applicant was charged with forgery and he signed an undertaking not to leave his place of residence.
9.  In 2001 and 2002 the applicant was on two occasions held in pre-trial detention. He spent six months in custody altogether.
10.  On 25 June 2002 the pre-trial investigation was completed and on 12 July 2002 the case was allocated to the Babushkinskiy District Court (Moscow) for judicial examination. The case concerned the applicant and seven co-defendants.
11.  The first hearing was scheduled for 11 August 2003.
12.  According to the applicant, in the period from August 2003 to July 2005 the case was assigned to six different judges of the Babushkinskiy District Court, which meant the trial had to start anew on each replacement.
13.  Hearings were adjourned on 2, 7 and 31 October, 6, 12 and 28 November, and 9 and 17 December 2003, and 21 January and 5 and 24 May 2004 because three of the co-defendants, all elderly persons, were unwell.
14.  On 5 May 2004 the trial court suspended the criminal proceedings in respect of the three co-defendants as they were seriously ill. The court acknowledged the protracted character of the proceedings.
15.  On 21 February 2006 the court ordered a forensic psychiatric examination of the applicant and suspended the examination of the case. On an unspecified date in December 2006 (date impossible to read in the relevant document) the case file was returned from the forensic psychiatric examination without having been examined. The accompanying letter stated that the examination had not been performed because the applicant had twice failed to appear (on 14 November and 5 December 2006). The proceedings were resumed on 28 December 2006. It appears that the examination in question has never been conducted.
16.  On 15, 19 and 27 June, 2, 10, 11, 13, 20 and 25 July, 6, 7, 13, 14, 17, 21 and 27 August, 10, 20, 24 and 28 September, and 4, 11 and 15 October 2007, hearings were adjourned because the applicant and two co-defendants failed to appear.
17.  On 24, 26, 29 and 31 October, and 2 and 6 November 2007, the court ordered the applicant to attend the pleadings and the pronouncement of the judgment, but to no avail.
18.  In the meantime, on 16 October 2007 the proceedings against the applicant were severed from those concerning the remaining co-defendants.
19.  According to the Government, during the proceedings the trial court heard over 600 victims and 44 witnesses. To speed up the proceedings the court read out statements by those victims and witnesses who had failed to appear and dismissed the prosecutor’s requests to obtain the attendance of a number of witnesses and victims.
20.  According to the applicant, however, only forty victims and no witnesses were questioned in open court.
21.  On 26 November 2007 the Babushkinskiy District Court examined the applicant’s case and disagreed with the prosecution’s characterisation of the applicant’s acts as fraud and forgery. The trial court noted that some of the essential characteristics of fraud and forgery were lacking. The applicant had not derived (and had not even intended to derive) any personal profit from the scheme and had not forged any official documents, but rather had given the organisation’s members reason to believe that the reconfiguration of the plots and building permits issued in the name of the organisation were valid acts. So, in the view of the court, the applicant was guilty of the offence of taking the law into his own hands rather than fraud and forgery. Accordingly, the court acquitted the applicant under Article 327 §§ 1 and 2 and Article 159 § 3 of the Criminal Code. The court, however, convicted the applicant under Article 330 § 1 of the Criminal Code of taking the law into his own hands, and sentenced him to compulsory work for a term of 200 hours. The applicant was exempted from serving his sentence.
22.  The applicant appealed. He complained, in particular, that the trial court, having retired to the decision room for the delivery of the judgment, had decided to convict him of a different crime from the one he had been charged with.
23.  On 13 February 2008 the Moscow City Court replaced the sentence of compulsory work with a fine in the amount of 20,000 Russian roubles, and upheld the rest of the judgment on appeal. As regards the applicant’s conviction for taking the law into his own hands, the City Court held that it had been within the trial court’s power to change the judicial qualification of the applicant’s actions. In reaching that conclusion the City Court relied on Article 252 of the Code of Criminal Procedure.
24.  During the night of 6 to 7 February 2002 the applicant was arrested. According to the applicant, the police squad broke into his flat, handcuffed him, kicked him, then dragged him outside, forced him into the police car and took to the Savelovskiy District police station (ОВД “Савеловский” САО г. Москвы).
25.  An ambulance was called for the applicant at the police station and it was discovered that he had an injury in the region of his ribs.
26.  At 3.30 p.m. on 7 February 2002 the police took the applicant to the Traumatology Centre. The applicant underwent a thoracic cage radiograph and was diagnosed with fractures to ribs 8 and 9 on his right side (radiograph no. 1339 of 7 February 2002).
27.  The applicant was then taken to Moscow remand prison IZ-50/1.
28.  On the same day the applicant submitted a complaint about alleged beatings to the head of the remand prison.
29.  On 8 February 2002 the applicant was questioned about the circumstances of the alleged beatings. The applicant’s daughter was also questioned and stated that she had seen the police officers pushing the applicant in the back, the applicant falling down, then the police officers handcuffing the applicant and kicking him on his back and the sides of his body. The officers on duty, B. and St., submitted that during the night of 6 to 7 February 2002 the applicant was taken to the police station, and that, following his requests, the ambulance was twice called for him. They further submitted that the ambulance doctor, having examined the applicant, said that he had a serious contusion in the area of his ribs. Police officer Sh., who was responsible for the applicant’s arrest, submitted that the ambulance doctor said that the applicant might have fractured ribs and gave him an injection. Officer T. of the special police forces (“the OMON”) submitted that the arrest had been calm and that the applicant had not resisted.
30.  On an unspecified date the investigator obtained a certificate from the Traumatology Centre to the effect that in the period between December 2001 and 7 February 2002 the applicant had not presented any injuries.
31.  On 24 April 2002 the Prosecutor’s Office of the Moscow Savelovskiy District refused to institute criminal proceedings against the police officers, having found no indication of a criminal offence.
32.  However, on 15 May 2002 the Moscow City Prosecutor’s Office annulled that decision and instituted criminal proceedings no. 229435 under Article 286 § 3 of the Criminal Code (abuse of position involving the use of violence).
33.  On 4 July 2002 the investigator questioned the applicant’s wife M., who had been present at the applicant’s arrest. She submitted that on 6 February 2002 her husband, herself and their daughter were at home when, some time after 11 p.m., somebody started ringing the doorbell. She did not open the door since it was late. She heard men’s voices outside. The men did not say who they were and they did not explain the reason for their visit, but persistently rang the bell and knocked on the door. M. called the police. Some thirty minutes later M. heard the sound of breaking glass in the kitchen. Several men entered the flat through the broken window. The men wore grey camouflage, flak jackets, helmets and high laced boots. They were armed. One of the men opened the front door and several other men entered the flat. The applicant, M., and their daughter were ordered to lie on the floor with their hands behind their backs. Without waiting for the applicant to obey the order to lie down, one of the men in camouflage pushed the applicant to the floor. She saw two men in camouflage and wearing boots start kicking the applicant on the middle part of his body. The applicant was in his underwear. He did not resist. M. saw the applicant later on at the police station, lying down. She heard him making health complaints. An ambulance was called for him. Later the applicant told M. that he had been taken to the Traumatology Centre and diagnosed with two broken ribs. He also told M. that the injuries had been caused by the police officers.
34.  On 8 July 2002 the investigator questioned the applicant’s daughter, who submitted as follows. On 6 February 2002 she and her parents were at home. About 10 p.m. she went to bed. Sometime after 11 p.m. somebody started to ring the doorbell. Then she heard men’s voices: “[Applicant’s name and patronymic], open the door, we know you are there”. They did not open the door since they did not know who it was. The men threatened to force the door. They broke the first door. She telephoned the police and told them that someone was trying to break into the flat, and was told to wait for a police squad. She and her parents gathered in the kitchen, waiting for the police to arrive. They then heard the balcony windows and the balcony door being broken. Two or three officers wearing grey-black uniforms entered the kitchen. They were wearing helmets and black steel toe-cap boots and were armed. They told her and her parents to lie down. She lay down; her father went down on all fours so as to comply with the order, but the officers in black uniforms pushed him onto his back and he fell face down, hitting himself against the coffee table. The officers handcuffed the applicant and two of them started kicking the applicant on his back and sides. The applicant asked them what they were doing, to which the officers and others in plain clothes, who by that time had also entered the flat, replied that they should have been let in the door at once and not been angered. M. told the officers not to touch the applicant, that he was not in good health, and asked to call an ambulance. The officers asked her to put some clothes on the applicant. She put sports pants on the applicant, prior to which the handcuffs were taken off him. She then saw the officers dragging the applicant by his hands and feet down the stairs and outside and putting him in the police car. The applicant later told her that he had two broken ribs.
35.  On 10 July 2002 the investigator questioned the applicant, who submitted as follows. Two officers wearing black uniforms, helmets and boots entered the flat through the window. One of them said “Muzzle to the ground” (“Лечь мордой на землю”). The applicant obeyed and lay down on the floor. The officers started kicking him on his body. They told him that they were beating him for slandering the police. Then they lifted him up and took him to the police car. He did not resist. At his request an ambulance was called twice for him at the police station. He was then taken to the Traumatology Centre, where he was diagnosed with two broken ribs.
36.  On 12 July 2002 the investigator questioned officer T. of the OMON. According to T’s submission, early in the morning on 7 February 2002 he and three other officers of the special police forces, Ts., A. and L., went to assist the police in the applicant’s arrest. He repeatedly knocked on the door of the applicant’s flat and asked for it to be opened, but in vain. They broke the external door, but failed to force the metal internal door. He then ordered officers Ts. and A. to enter the flat through the window with the help of climbing equipment. Ts. and A. got into the flat. The door was then opened for T. and the other officers waiting outside. T. saw the applicant, an elderly man, lying on the floor. The latter made no health-related complaints and showed no signs of injury. A hunting rifle was found in the flat. The applicant showed no resistance, but refused to go to the police car. After the handcuffs were removed from the applicant, T. and other officers seized the applicant by his arms and legs and put him in the police car. The applicant did not resist. Officers A. and Ts. told T. that the applicant had not resisted when they had broken into the flat, and that no physical force had been applied to him.
37.  On 15 July 2002 the investigator questioned OMON officers Ts. and A., who submitted that they had entered the applicant’s flat through the window. They identified themselves as police officers and asked the applicant to lie down, which he did, following which he was handcuffed. The applicant showed no resistance, and therefore no physical force was applied to him. They further submitted that when using climbing equipment they usually wore sneakers rather than boots. They did not participate in taking the applicant downstairs, but they saw other police officers putting the applicant inside the police car, the latter bawling and shouting.
38.  On 7 August 2002 the applicant underwent an expert forensic medical examination. He was diagnosed with a closed blunt injury to the thoracic cage, accompanied by fractures to ribs 8 and 9 on his right side, but with no damage to internal organs. The injuries were found to have been caused by blows administered by hard blunt objects (a fist or booted feet). They were found to have resulted in moderately severe damage to the applicant’s health. The expert had insufficient material to establish the time when the injuries might have occurred (expert examination no. 358/02 of 7 August 2002).
39.  On 9 August 2002 the investigator questioned police officer Sh., the officer in charge of the applicant’s arrest. He submitted that on 6 February 2002 at about 9 p.m. he, police officers K. and S., and two other police officers went to the applicant’s address. Until midnight they attempted unsuccessfully to enter the flat, following which Sh. telephoned the officer on duty at the police station and asked for the OMON to be sent over. Some time later four OMON officers arrived. Two OMON officers entered the flat through a window. Sh. heard the sound of breaking glass and some commotion, and had the impression that there was some sort of struggle going on inside the flat. Several minutes later the door to the flat was opened, the two OMON officers entered first and inspected the flat, then the police officers went in. The applicant’s wife was calling the OMON officers “sadists” and “fascists”, and saying “why did you have to do that to him” (“зачем вы его так”), she was also saying something about a torn boot and asking to call an ambulance for her husband. The OMON officers who had entered the flat through the window were wearing sneakers. The applicant was lying face down on the kitchen floor, his hands handcuffed behind his back. He was wearing underclothes. At Sh.’s request, the applicant’s daughter put sports pants on him. Sh. then took the handcuffs off the applicant so that he could get up and proceed to the police car. However, the applicant refused to get up; he moaned and called the OMON officers “sadists”. He did not say that he had been subjected to any violence by the OMON officers. Sh. noticed that the applicant was sweaty and assumed that he had showed resistance during his arrest. The applicant refused to go to the police car and was taken to it against his will by the police officers. While still in the flat Sh. contacted the officer on duty at the police station and asked him to call an ambulance to the police station for the applicant. The ambulance medic examined the applicant at the police station, said that he might have broken ribs, gave him an injection and confirmed that he could be detained in the remand prison.
40.  On 15 August 2002 the criminal proceedings were discontinued. The investigator, having examined the above evidence, concluded that the applicant might have broken his ribs while he was being placed inside the police car against his will.
41.  On 10 September 2002 that decision was quashed by the prosecutor on account of the investigator’s failure to question police officers G., N. and Sam., OMON officer L., and duty officers B. and St., to carry out confrontations between the applicant and his wife and daughter, and OMON officers Ts. and A., and to question the forensic medical expert on the possibility that the applicant had sustained his injury while being placed in the police car.
42.  On 2 October 2002 the investigator questioned duty officer B., who submitted that the applicant had no visible injuries when he arrived at the police station, but started complaining about pain in his back. An ambulance was called for him. The ambulance medic examined the applicant, diagnosed him with serious contusions and said that no hospitalisation was required. According to duty officer B, during his period of duty nobody subjected the applicant to any violence.
43.  On 5 October 2002 a confrontation was carried out between the applicant’s wife M., and officer A. On 8 and 24 October 2002 confrontations were carried out between the applicant and officers Ts. and A. The applicant maintained that he had been beaten up and had sustained his injuries as a result of beatings by A. and Ts.
44.  In the meantime, on 10 October 2002 the proceedings were again discontinued. The investigator mentioned that he had carried out confrontations between the applicant and officers Ts. and A., and between the applicant’s wife and officer A. The investigator concluded that it had not been confirmed that injuries had intentionally been inflicted on the applicant by the police officers.
45.  As soon as the applicant learnt of the above decision he challenged its lawfulness before the Tverskoy District Court (Moscow).
46.  On 31 January 2006 the Tverskoy District Court found the decision of 10 October 2002 unlawful and unjustified and ordered the Prosecutor’s Office of the Savelovskiy District to remedy the shortcomings in the investigation. The court noted that the decision of 10 October 2002 relied on the results of the confrontation between the applicant and officer A., whereas that confrontation had not been conducted until 24 October 2002. The court further noted that the investigator had failed to explain why he did not trust the submissions made by the applicant, his wife M., and their daughter, that he had made no assessment of how the applicant’s injuries as established by the forensic medical expert had been inflicted, and that he had not resolved the contradictions in the evidence.
47.  On 14 February 2006 the proceedings were resumed.
48.  On 22 February 2006 the investigator questioned the applicant again. The applicant confirmed his account of the events. He further submitted that following his release from custody in June 2002 he had been diagnosed with a brain haematoma, which he had had removed by surgery in July 2002. The applicant claimed that the haematoma was also the result of his beatings by the OMON officers. The applicant confirmed that he had had a hunting rifle in his flat at the time of his arrest, that he still had it, and that he had legal permission to have it.
49.  On 20 March 2006 the proceedings were again discontinued, the conclusion having again been reached that the fact of intentional infliction of injuries on the applicant by the police officers had not been established.
50.  On 16 June 2006 the Savelovskiy District Prosecutor’s Office quashed that decision and resumed the proceedings. It indicated that in the course of the additional investigation it would be necessary to question all the police officers who had participated in the applicant’s arrest, to question the ambulance doctor who had examined the applicant at the police station, to arrange a forensic medical examination in order to establish whether the applicant could have sustained his injuries (broken ribs) by falling on the floor (once or several times) or on any other surface, and to determine the origin of the brain haematoma the applicant was later discovered to have: in particular, whether, in the absence of any visible injuries at the applicant’s initial examination, it could have been caused by a blow that left no visible external haematoma. It was also recommended that the legal basis for the application of physical force by the police be studied.
51.  On 20 and 22 June 2006 the investigator questioned police officers G., St., and N., and OMON officer Ts. was questioned again. In the course of the investigation it turned out to be impossible to identify the ambulance doctors who had examined the applicant at the police station owing to the remoteness of events in question. It also turned out to be impossible to hold a forensic medical examination in order to determine whether the applicant could have received his injuries as a result of a fall on the floor, as the applicant’s medical file was with the Babushkinskiy District Court.
52.  On 16 July 2006 the proceedings were discontinued. The investigator arrived at the conclusion that physical force had been applied to the applicant by OMON officers Ts. and A. when the latter had entered the applicant’s flat as a result of his refusal to comply with their lawful requests. The relevant part of the decision reads as follows:
“... In accordance with sections 11 § 7 and 13 of the Federal law on the militia, police officers may arrest and detain those in respect of whom it has been decided to apply a custodial measure and apply physical force thereto if nonviolent methods do not secure the fulfilment of their duties. In the present case [the applicant] refused to comply with the lawful requests of the police, namely, in the beginning [he] did not open the door, and afterwards when A. and Ts. entered the flat through the window ... and opened the front door [the applicant] refused to proceed to the police car, as a consequence of which physical force was applied to [him] and he was carried to the police car but actively resisted being put inside the car ... In view of the foregoing, there are sufficient grounds to believe that [the applicant] had also resisted when [OMON] officers A. and Ts. had entered the flat. Moreover, the police officers had been warned that [the applicant] was armed with a hunting gun, which forced them to take resolute action ...”
53.  On 30 November 2006 the Tverskoy District Court (Moscow) found the decision of 16 July 2006 lawful and justified.
54.  On 20 June 2007 the Moscow City Court upheld that judgment on appeal.